POTO: An Assult on Democracy

By Rajeev Dhavan

ACRONYMS ARE dangerous. POTO (the Prevention of Terrorism Ordinance), is one such acronym being marketed as a panacea to fight terrorism in India for the next five years. Its predecessor, TADA (the Terrorist and Disruptive Activities (Prevention) Act), had a long reign of 10 years (1985-1995). It was the most misused and abused anti-civil liberties legislation since Independence. POTO is no better.

Is POTO related to TADA? History reinforces POTO's antecedency. Parliament enacted TADA in 1985 and extended and enlarged it on five occasions from 1985 to 1995, often with insufficient scrutiny (at an average of 3 hours and 2 minutes per debate with the debate in 1993 featuring only 8 speakers. But, in 1995 - following strong opposition from the Left and the BJP - Parliament examined a compromise TADA through a Joint Committee and decisively rejected the Congress' attempt to re-introduce it in any form. On February 2, 1999, the Home Ministry restored a draconian version of TADA (by 1995 concessionary standards). The Law Commission was summoned to the fray, it held meetings on December 20, 2000, and January 29, 2001, and submitted an admittedly modified version of TADA to the Government on April 13, 2001 through its 123rd Report (2001). Meanwhile, following its strong stance on February 20, 1995, the National Human Rights Commission (NHRC) countered the Law Commission by unreservedly rejecting the Commission's draft statute of July 14, 2000, in toto as wholly unworthy and inimical to civil liberties and democracy while accepting the need to examine the financial aspects of terrorism. But even the Law Commission's velvet glove draft did not satisfy the Government. POTO added two draconian chapters on ``Terrorism Organisations'' (Chapter III) and ``Interception of Communications'' (Chapter V), proscribed 23 Organisations and peremptorily promulgated POTO during the inter- session of Parliament on October 24, 2001. The fact that the new chapters claim inspiration from legislation from Andhra Pradesh and Maharashtra can never justify their indiscriminate application. But the Government desperately wanted POTO.

Why an Ordinance? Government by Ordinance is an extreme step. Why was POTO promulgated on October 24 when the next session was only five weeks away. The Government's claim that it had only mechanically promulgated a consensus legislation is absurdly false. The Law Commission's Draft on which POTO is based was rejected by the NHRC. Two new chapters are added. Twenty-three organisations are banned which should have been banned under the more rigorous Unlawful Activities Act, 1967. There is no case whatsoever for bypassing Parliament by ordinance. POTO is a fraud on parliamentary democracy.

Is POTO really necessary? The NHRC, consisting of the former Chief Justice of India, Mr. J. S. Verma, and two Supreme Court judges (Justices Mrs. Sujatha Manohar and Mr. K. Ramaswamy) rightly points out that the need for POTO is ``substantially taken care of under the existing laws'' - including provisions of the Indian Penal Code relating to the sovereignty and integrity of India (Ss. 153B), conspiracy to overawe by criminal force (Sect. 121A), collecting arms and ammunition (Sect. 122), sedition (Sect. 124A), promoting enmity between groups (Sect. 153A, 295A) offences against body Chap. XVI) and property (Chapter XVII), offences under the Arms Act 1959, Explosives and Explosive Substances Act (dealing with weaponry), Armed Forces Special Power Act 1958 (for disturbed areas), Unlawful Activities Act 1967, anti-Hijacking Act 1972, Preventive Detention statutes of all descriptions, the Narcotic Act 1988. Punishments could always be increased, by Parliament. In my view, Sec.124-B could be added creating a new offence of ``terrorism''. But why not use the ordinary procedure of the Criminal Procedure Code (Cr.P.C.) rather then the extraordinary processes of TADA or POTO?

Was TADA genuinely abused? TADA's story is the most abused peace time non-emergency legislation of Independent India. The statistics are startling. Till 1994, some 76,000 people were arrested. Acquittals were low - in November 1993 assessed at 0.81 per cent in some areas. Non-terrorist Gujarat saw a conspirational communal use. By the year 1999 (years after TADA lapsed in 1995), 1,344 cases were yet to be investigated and 4,958 trials to be completed. In the Shaheen Welfare case, an embarrassed Supreme Court ordered the review of needless arrests and detentions. Potentiality for abuse is not a ground for unconstitutionality. But, even the Law Commission agrees that unconstitutionality is not the only test. The process is the punishment. Like TADA, POTO will encourage local police terrorism, communalism, mindless arrests, compulsory jail not bail and long drawn trials. Draconian laws invite such state terrorism to wipe out civil liberties. Potential abuse cannot be ignored.

It POTO really draconian? The short answer is yes. The definition of terrorism is still too wide and could be used against strong protests outside Government buildings. Bail will not be granted unless ``he is not guilty of committing (the) offence'' (Sect. 48(7). The investigation period can stretch to 120 days (Sec. 48(2). The ``citizen spy'' provisions requiring even journalists (but not lawyers) to reveal information of material assistance carries a punishment of 3 years and unlimited fine (Sect. 3(8) and 14) - compared to the normal punishment of 3 months and a Rs. 200 fine with bail. POTO permits confessions to the police (Sect. 32). The strong presumptions against the accused continue (Sect. 4 with 27 and 52). The curious concept of a preparatory offence goes well beyond the normal criminal law concepts of ``attempt'' and abetment (Sect. 3(3)). The new compensation provision (Section 56) for mala fide abuse is impossible to prove and, militates against the good faith, immunity provided by POTO (Section 57). Properties of alleged terrorists can be confiscated even if they are not tried. The summary post-confiscation procedure cannot mitigate the width of the abuse and consequences (Section 6). Unwelcome organisations can be banned more easily (Chapter III) in a manner inconsistent with the Supreme Court decision in V. G. Row's case (1952) injuncting banning by notification. Yet, 23 organisations have been statutorily banned. More will follow. The power to intercept communication (Chapter V) is extremely wide. It is designed to permit 17 days of interception by a Joint Secretary with relative impunity stretching to 60 days. The nation may never know how, why and for what reason. There is lip service to the procedure prescribed by the Supreme Court's PUCL decision (1995). But, these provisions are wide, new and need scrutiny. Lay political appointees reviewing interception and organisational bans may outvote the Chairman Judge (Sect. 59). That Superintendents of Police and their Deputies have been placed in-charge of various investigations and powers is hardly a safeguard. It is impossible to believe that the mayhem caused by TADA was not to the knowledge of these officers. The Special Judges will be chosen with political care and confirmed, perhaps, by uninformed judicial oversight.

What next? It is clear that POTO is wider and worse than TADA. The safeguards are insufficient. The political reason for POTO is self-evident. The BJP has already declared that those who oppose POTO are anti-national. Democratic discussion on POTO is subject to political blackmail. Promulgating an Ordinance as a fait accompli is itself pre- emptive political terrorism. The central question remains: Why not a new definition of `terrorism' enforced only by the Cr.P.C. procedure? POTO assumes that India's one billion people are potential terrorists and there are terrorists under every bed. Each Indian citizen is being asked to spy on every other citizen on pain of imprisonment without bail. This is a solution looking for a problem. POTO is an assault on democracy. It should be rejected.